1. Sources of Law 1 The common law
This semester we will be studying English civil law. Today I will give an introduction to the English legal system and to the system of common law.

2. The English common law system
Traditionally based on case law / judge-made law
Advantages:
speed
flexibility
precision
England and Wales have a common law system as opposed to a civil law system.
Common law is a system which is traditionally based on case law, also known as judge-made law.
Essentially, if there is no existing law applicable to a particular dispute, the judge can create new law
This used to be the main source of law in the English system.
Today, judge-made law is less central to the English system. There is significantly more parliamentary legislation than in the past, partly because of the impact of European law – a lot of of the time, a judges role is more about interpreting legislation than really making law.
Nonetheless it is stll important to understand how it works.
There are many advantages to this system:
Speed: no need to wait for Parliament to legislate
Flexibility: if an unforeseen situation arises, where no existing law is applicable, the judge can create new law
Precision: through cases, judges can develop detailed law in specialist and technical areas where Parliament has neither the time nor the inclination to legislate
But there also needs to be stability in the system.
The law needs to be predictable – potential liigants need to know what the law is and be able to anticipate how courts are likely to rule.

3. How is stability ensured?
The doctrine of precedent
based on the principle of stare decisis
The system of precedent –
Based on the principle of stare decisis (=«to stand by that which is decided» ie adhere to and apply the decision made in previous cases)

4. The doctrine of precedent in action
When judges decide a case, they write an opinion, which contains:
the facts of the case
the legal principle used to decide a case
= the ratio decidendi
binding on lower courts
incidental comments or observations - for example, on how the law would be applied if the facts were different
= obiter dicta
not binding, but can be persuausive
When judges decide a case, they write an opinion, which contains
the facts of the case
the legal principle used to decide a case
= the ratio decidendi
The ratio decidendi is binding on judges in lower courts, in cases where the facts are suffieicntly similar
Incidental comments or observations - for example, on how the law would be applied if the facts were different
= obiter dicta
Obiter dicta are not binding, but they can be persuasive (a judge may be influenced by them)
Opinions are much longer than in France, they can be 40 or 50 pages long. They are gathered together in law reports – books which contain all the decisions of the higher courts. Today there are online versions, much easier to search and access.

5. The hierarchy of courts
Lower courts are bound by the previous decisions of higher courts
The court of last resort is the UK Supreme Court:
its decisions bind all lower courts
it can depart from precedent
The Court of Appeal and the High Court
bind lower courts
are bound by their own precedents
The system of precedent is based on a hierarchical court structure
SHOW SHEET
Lower courts are bound by the previous decisions of higher courts
The court of last resort is the UK Supreme Court decisions taken by 12 Supreme Court justices > its decisions bind all lower courts
It can depart from precedent if respecting precedent would lead to injustice
NEW COURT > used to be called the appeallate committe of HOL (up to 2009) and judges were called Law Lords
The Court of Appeal and the High Court
bind lower courts
are bound by their own precedents

6. Distinguishing
A case can be distinguished from an apparent precedent on the grounds that
there are significant differences between the material facts of the two cases
the cases raise different legal issues
The problem with this from a judge’s point of view is that sometimes this creates a bit too much stability.
Sometimes a judge is faced with a case which seems to be a precedent, which he is reluctant to follow – either because the precedent is out of date, society has changed and its no longer relevant, or when it is applied to the case at hand the result is not satisfactory.
In this situation, one possibility is to distinguish the case.
A case can be distinguished from an apparent precedent on the grounds that
there are significant differences between the material facts of the two cases
the cases raise different legal issues
If a judge can distinguish a case from a previous case, he is no lo,nger bound to follow the legal principle established in that earlier case. Creates some flexibility for judges. .

7. The importance of legislation
Today legislation is an important source of new law.
Since Parliament is sovereign…
…legislation overrides case law.
Finally, we said earlier that case law is a much less important source of law today than in the past
Today legislation is an important source of new law.
Since Parliament is sovereign…
…legislation overrides case law. > legislation takes precedence over case law